On January 20, 2017, Donald J. Trump was sworn in as the 45th President of the United States. His campaign speeches were fraught with promises of swift and drastic changes to US immigration policy – the famous wall, rollbacks of “chain migration” and a limit on foreign workers.
Although his wall has yet to be funded or built, and touted legislative changes have yet to occur, President Trump has made good on many of his plans to rein in immigration. He has accomplished this through a variety of orders, policies and memorandum, and likely through mandates made through his staff. Immigration advocates are calling this the “silent wall.”
LET’S TAKE A LOOK AT HOW 2017 CHANGED THE FACE OF IMMIGRATION
THE END OF DACA: DACA – or Deferred Action for Childhood Arrivals – was an executive order signed by President Obama on June 15, 2012. The program provided certain benefits to young people who were brought to the United States as children, and provided employment authorization and protection against removal. As the subject of an executive order, DACA was a vulnerable target under the new administration. And as anticipated, President Trump rescinded DACA on September 5, 2017. He provided a brief grace period, allowing renewals of current DACA grants that expired before March 5, 2018, allowing Congress a brief window in which to create a permanent DREAMER program. It is hoped that this will be a priority after Congress returns in January 2018. Please visit our BLOG post on DACA termination.
EXPANSION OF IN-PERSON INTERVIEWS: Historically, employment-based adjustment of status applicants have not been required to appear for in-person interviews; their “greencards” have been approved or denied by mail after careful and critical review by the Service Centers. However, on August 28, 2017, USCIS announced that it would begin interviewing all employment-based greencard applicants, with a phase-in planned for October 1, 2017. It is unclear if this will lead to an improvement in security and integrity of the applicants, as hoped by the Administration; but we certainly expect to see an increase in the backlog of in-person interviews for all categories as the local USCIS district offices grapple with an influx of cases.
THE END OF TPS FOR SOME NATIONALITIES: TPS – or Temporary Protected Status – is an administrative program aimed to provide employment authorization and protection from removal for citizens of designated counties. TPS is generally designated to countries that face devastating natural disasters – such as the earthquake in Haiti – or civil conflicts – such as the ongoing wars in Syria. TPS does not admit people who are abroad; but it provides temporary status to those already in the United States. TPS has been significantly rolled back under President Trump, when his administration announced an end to program designation to Haiti and Nicaragua, with an anticipated end in sight for Honduras as well.
TRAVEL BANS: Perhaps the most divisive and publicized actions under the Trump Administration have involved the so-called Travel Bans. This Executive Order identified countries whose citizens or procedures were perceived security threats to the United States, and either banned or limited travel of its citizens to the Unites States. Travel Bans 1.0 and 2.0 either expired or were rescinded by the Trump Administration after federal court challenges. However, Travel Ban 3.0 is currently in effect, with very limited nonimmigrant and immigrant entries allowed by citizens of 9 listed countries. Please visit our BLOG post on the current travel ban.
BAHA: On April 18, 2017, President Trump signed his Executive Order titled “Buy American, Hire American.” Called BAHA for short, this order is far from the luxury vacation spot its acronym suggests. The focus of BAHA was to implement limits on employment-based immigration – in all categories – to supposedly improve the conditions of US workers. BAHA can now be seen as additions to the USCIS Adjudicator’s Field Manual (AFM) and the US State Department’s Foreign Affairs Manual (FAM), most of which have made employment-based immigration more costly and complex for US employers. One such practical change seen from BAHA is the H-1B Level One Wage RFEs that inundated attorneys and employers in the summer of 2017. We are also seeing changes to E-2 adjudications at worldwide consulates, as an example. Because US employers often have deep pockets and even deeper stakes, we anticipate a number of federal lawsuits aimed at the policies under BAHA. Stay tuned!
90-DAY INTENT RULE: The issuance of visas for United States entry is controlled by the US Department of State. Historically, the State Department was not generally concerned with whether an applicant changed, extended or adjusted his status if more than 60 days passed since US entry; in other words, if someone entered on a B-2 visitor visa, and filed an I-129 application to change to an employment-based category on day 75, the consulates would not object. On September 1, 2017, that all changed when the State Department announced the new 90-Day Intent Rule and changes to the 9 FAM 302.9-4(B)(3). Under the new regulations, an applicant for any US visa will be presumed to have committed misrepresentation is he or she does anything inconsistent with the underlying visa category – including marrying a United States citizen. This finding will require a waiver for any future applications. It remains to be seen if USCIS will also expand its policies to mirror those of the Department of State.
2017 was certainly a challenging year in immigration policies and actions. However, we remain confident that such changes will lead to a renewed focus on comprehensive immigration reform, and permanent, intentional and thoughtful legislation.
Now, more than ever, it is critical that you seek legal representation that will best protect your interests and advocate for you. Contact our office to speak with one of our attorneys about your case. We look forward to serving you in 2018 and beyond.
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